969 F.3d 1333
Fed. Cir.2020Background
- James L. Kisor served in the Marines (1962–1966), filed for PTSD benefits in Dec. 1982; a 1983 VA psychiatric exam recounted combat anecdotes but diagnosed personality disorders, not PTSD, and the RO denied the claim; the decision became final.
- In June 2006 Kisor requested to reopen; he submitted service records (including corrected DD Form 214, Combat Action Ribbon, unit daily log) and a 2007 psychiatric report diagnosing PTSD.
- The RO reopened the claim, later granted service connection for PTSD with an effective date of June 5, 2006 (the date he sought reopening).
- The Board and Veterans Court denied an earlier effective date under 38 C.F.R. § 3.156(c)(1), concluding the newly associated service records were not "relevant" because the 1983 denial was based on the absence of a PTSD diagnosis, not on an in-service stressor.
- This Court originally deferred to the Board under Auer in Kisor I (869 F.3d 1360), but the Supreme Court in Kisor II (139 S. Ct. 2400) vacated and remanded to determine whether the regulation is genuinely ambiguous and whether Auer applies.
- On remand this panel held § 3.156(c)(1)’s term "relevant" is not genuinely ambiguous in context and adopted the Board’s interpretation: "relevant" service records must speak to a matter in issue (i.e., a matter in dispute) and therefore affect the prior decision’s basis or outcome; it affirmed denial of an earlier effective date.
Issues
| Issue | Kisor's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the term "relevant" in 38 C.F.R. § 3.156(c)(1) is genuinely ambiguous so as to permit Auer deference | Not genuinely ambiguous; if ambiguous, pro-veteran canon and remedial purpose favor a broad reading that includes any record probative of a fact of consequence | Not genuinely ambiguous; if read, "relevant" means records that affect the outcome by addressing the basis of the prior decision | Court: Not genuinely ambiguous in context; Auer deference not applied; independent interpretation adopted (Board's meaning) |
| Proper scope of "relevant" under § 3.156(c)(1) (what must newly associated service records show?) | A record is "relevant" if it has any tendency to make a fact of consequence to the claim more or less probable (i.e., helps establish any unestablished element) | "Relevant" means the record must address a dispositive issue and speak to the basis of the VA’s prior decision (i.e., a matter in dispute that could change the outcome) | Court: "Relevant" means the record must speak to a matter in issue (a matter in dispute) and thus affect the outcome; records here did not address the 1983 basis (lack of diagnosis) |
| Applicability of the pro-veteran canon when construing § 3.156(c)(1) | Pro-veteran canon should resolve doubt in favor of a broader, remedial reading | Canon applies only if the regulation is genuinely ambiguous; here the regulation is not ambiguous | Court: Pro-veteran canon not invoked because the panel found no genuine ambiguity after textual, contextual analysis |
Key Cases Cited
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (Supreme Court vacated Fed. Cir. decision and instructed court to determine whether Auer deference applies by first testing genuine ambiguity)
- Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017) (prior panel decision that applied Auer deference to Board’s interpretation of "relevant")
- Auer v. Robbins, 519 U.S. 452 (1997) (establishing deference to reasonable agency interpretations of ambiguous regulations)
- Blubaugh v. McDonald, 773 F.3d 1310 (Fed. Cir. 2014) (discussing § 3.156(c) and that newly discovered records must lead VA to award a benefit not granted previously)
- AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (three-element framework for establishing service connection for PTSD)
- Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (defining "relevant records" under VA’s duty-to-assist statute as those relating to the claimed injury and having a reasonable possibility of helping substantiate the claim)
- Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) (explaining the standard for reopening and rejecting a requirement that new evidence must show it would change the outcome)